In Re: Stake Center Locating, Inc.

The Mandatory Victim Restitution Act and the Crime Victims’ Rights Act provide victims with “a right to restitution, not a right to criminal forfeiture,” and under the Crime Victims’ Rights Act, the government maintains broad discretion in determining whether to “seek forfeiture of assets implicated in an offender’s wire fraud.”

Deborah DiFrancesco pled guilty to tax evasion and wire fraud of her former employer, Stake Center Locating, Inc. (“Stake Center”). As part of her plea agreement, DiFrancesco was to make restitution of $763,846 to Stake Center. Stake Center asked the district court to “compel the government to institute criminal forfeiture proceedings and to obtain property allegedly traceable to DiFrancesco’s crimes.” However, the district court denied Stake Center’s motion. Under the Crime Victims’ Rights Act (“CVRA”) and the Mandatory Victim Restitution Act, victims have “a right to restitution, not a right to criminal forfeiture.” The Ninth Circuit rejected Stake Center’s contention that criminal forfeiture is a type of restitution, noting that “only a criminal defendant is subject to restitution, not third parties.” The panel held that the district court did not err in refusing to compel the government to initiate criminal forfeiture proceedings against non-parties suspected of possessing “assets implicated in DiFrancesco’s criminal activities.” Further, the panel declined to accept Stake Center’s argument that forfeiture is mandatory for wire fraud because such forfeiture is mandatory “only if the government exercises its discretion to seek such forfeiture.” When determining what parties to prosecute, the government is left with broad discretion, and the CVRA “does not impair that broad discretion.” Therefore, the panel denied Stake Center’s petition for writ of mandamus. DENIED.